Estate Planning Newsletter

• Trusts & Powers of Attorney
  If you become incapacitated, who is supposed to make decisions for you about the management of your property or your health care? A durable power of attorney allows someone you designate to act on your behalf. It is usually included as... Read more.
• Irrevocable Funeral Trusts and Medicaid Eligibility for Long-Term Care
  If you are concerned that the cost of skilled nursing care or other long-term care will exhaust your savings and saddle your heirs with your funeral and burial expenses, then you may want to consider adding an Irrevocable Funeral Trust... Read more.
• The Legal Fiction of Equitable Adoption When a Person Dies Without a Will
  In general terms, the judicial doctrine of “equitable adoption” recognizes a valid parent-child relationship in the absence of a formal adoption procedure, holding a person who has acted like a child’s parent for a... Read more.
• Special Needs Trusts Preserve Public Benefits for the Disabled
  Some government statistics estimate that between 15% and 20% of all Americans have some form of disability. It is also estimated that the majority of disabled persons will need to avail themselves of public assistance to help pay the... Read more.

• Estate Planning and Business Transition Considerations for Year-End Preparations
• Estate Planning Benefits Gain Momentum
• Enjoying the Ride: Estate Planning
• Three Overlooked Benefits of Estate Planning
• Expert advice on digital estate planning

The 'As Near As Possible' Rule

If you create an estate planning document leaving property to a charity, but after your death the transfer cannot occur, the court may apply the cy pres rule.

The words “cy pres” are French for “as near.” If your charitable wishes cannot be achieved, the court uses this doctrine to attempt to fulfill your wishes as near to your original wishes as possible.

Why a Gift May Be Non-Transferable

Your charitable gift may not be transferable to your chosen charity because that charity:

• Refuses to accept it
• Could not be identified
• No longer exists on the date of your death

Additionally, a gift may not be possible due to the fact that you:

• Identified more than one charity in an ambiguous manner
• Failed to name a specific charity as recipient
• Failed to specify a charitable purpose

Under cy pres, when your charitable gift cannot be transferred to the organization specified in your trust, it may be given to a related charity that has a related charitable purpose.

Limited Application

The cy pres rule typically will not be applied unless there is no way your particular charitable purpose is possible. Courts are reluctant to second guess intent, so the rule may not be applied if you have not clearly articulated a charitable intent.

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